inflaming the passions and exciting to immoral conduct that it is punishable. A person named Comstock living somewhere in New York, has made this branch of the law notorious during the past few years by endeavoring to prohibit everything from the works of the old masters, in the art gallery, to the china doll, in the toy store window, unless completely clothed. He is certainly not a candidate for the Order of the Garter, whose motto he evidently cannot comprehend.

Every person has a right to Christian burial, and a pauper dying in another's house must be buried by the dweller in that house; it is his duty to do this and to neglect to do it would render him liable to be indicted for nuisance. Queen v. Stewart, 12 Ad. & El. 773. And the right is to be buried. A man in Maine, instead of burying an infant, threw its dead body into the nearest stream. He was held punishable for a nuisance. Kanavan's Case, 1 Me. 226. And so to disinter a dead body is also an indictable offense. R. v. Gillies, R. & R. 366. In an English case a gaoler refused to deliver up for burial the dead body of a prisoner who had died in gaol to the executors, on the ground that deceased owed him some money. It was held that the gaoler was guilty of an indictable nuisance. Reg. v. Scott, 2 Q. B. 248.

CRIMINAL LIBEL

--

TRUTH, WHEN A DEFENSE.

COMMONWEALTH v. CLAP.

[4 Mass. 163; 3 Am. Dec. 212.]

Mr. Clap's opinion of Mr. Haywood may be judged from the following sentiment, which he caused to be printed and posted up in prominent places in the town where both of them resided:

NOTICE.

CALEB HAYWOOD

IS A

LIAR, A SCOUNDREL, A CHEAT, AND A

SWINDLER.

DON'T PULL THIS DOWN.

For indulging in this little pleasantry Mr. Clap was indicted for libel. When the trial came on he wanted to show that Mr. Haywood was all that he had said of him, but the court refused to let him, saying that the truth of the statement made it none the less a criminal libel.

On appeal to the Supreme Court this ruling was affirmed, Chief Justice Parsons stating the law as follows: "A libel is a malicious publication expressed

either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead or the reputation of one who is alive, and expose him to public hatred, contempt or ridicule. The cause why libelous publications are offenses against the State, is their direct tendency to a breach of the public peace by provoking the parties injured and their friends and families to acts of revenge, which it would not be easy to restrain, were offenses of this kind not severely punished. And every day's experience will justify the law in attributing to libels that tendency which renders the publication of them an offense against the State. The essence of the offense consists in the malice of the publication, or the intent to defame the reputation of another. In the definition of a libel as an offense against law, it is not considered whether the publication be true or false; because a man may maliciously publish the truth against another, with the intent to defame his character, and if the publication be true, the tendency of it to inflame the passions and to excite revenge is not dimished, but may sometimes be strengthened. The inference is, therefore, very clear that the defendant can not justify himself for publishing a libel merely by proving the truth of the publication, and that the direction of the judge was right. If the law admitted the truth of the words in this case to be a justification, the effect would be a greater injury to the party libeled. He is not a party to the prosecution, nor is he put on his defense; and the evidence at the trial might more cruelly defame his character than the original libel. Although the truth of the words is no justification in a criminal prosecution for a libel, yet the defendant may repel the

charge, by proving that the publication was for a justifiable purpose and not malicious, nor with the intent to defame any man. And there may be cases where the defendant, having proved the purpose justifiable, may give in evidence the truth of the words, when such evidence will tend to negative the malice and intent to defame. Upon this principle a man may apply by complaint to the Legislature to remove an unworthy officer; and if the complaint be true and made with the honest intention of giving useful information, and not maliciously, or with intent to defame, the complaint will not be a libel. And when any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for the office. And publications of the truth on this subject, with the honest intention of informing the people, are not a libel. For it would be unreasonable to conclude that the publication of truths, which it is the interest of the people to know, should be an offense against their laws. And every man holding a public elective office may be considered as within this principle; for as a re-election is the only way his constituents can manifest their approbation of his conduct, it is to be presumed that he is consenting to a re-election if he does not disclaim it. For every good man would wish the approbation of his constituents for meritorious conduct. For the same reason the publication of falsehood and calumny against public officers, or candidates for public offices, is an offense most dangerous to the people and deserves punishment, because the people may be deceived, and reject the best citizens, to their great injury, and it

may be to the loss of their liberties. But the publication of a libel maliciously and with intent to defame, whether it be true or not, is clearly an offense against law, on sound principles, which must be adhered to so long as the restraint of all tendencies to the breach of the public peace, and to private animosity and revenge, is salutary to the Commonwealth."

Libel is the malicious publication of any writing, sign, picture, effigy or other representation tending to defame the memory of one who is dead, or the reputation of one who is living, and to expose him to ridicule, hatred, or contempt. A letter or passage in a book or newspaper, words written on a wall, a picture, or an effigy, such as a gallows set up before a man's door, may be a libel.

Slander, however, (i.e. oral defamation), is not an indictable offense in this country. In England there was a common-law offense known as scandalum magnatum, which was defined as being to "speak or to tell any false news, lies, or other such false things of the prelates, dukes, earls, and other nobles and great men of the realm." But as we have no "prelates, dukes, earls, nobles or great men of the realm" in this sense- - for in the United States, before the law, no man can be more than an "American citizen," so we do not recognize any scandalum magnatum.

The test as to whether a publication is an indictable libel or not is, does it expose him to ridicule, hatred or contempt, so as to stir him up to break the peace, or hunt the libeller up and give him a thrashing.

There was nothing of the public spirited citizen about Mr. Teller, of Detroit, Michigan, nevertheless he felt mad when he read the following item in the newspaper, referring to himself: "The above druggist, in the City of Detroit, refusing to contribute his mite with his fellow-merchants for watering Jefferson Avenue, I have concluded to water said avenue in front of Pierre Teller's store for the month ending June 27, 1846." Finding out the man who wrote this he had him arrested for libel. But the charge would not stick. "He refused," said the court, "to contribute his mite; and if this was not commendable, it, at the least, is obvious it was his right to do so; and I cannot see how the charge has any tendency to expose him to public hatred, contempt, and ridicule." People v. Jerome, 1 Mich. 142. The judge probably understood the temper of the people of Detroit; but in some com